City of Evansville v. Nelson

• Decision Date: 25 June 1964
• Docket Number: No. 30616,30616
• Citation: 245 Ind. 430,199 N.E.2d 703
• Parties: CITY OF EVANSVILLE, Indiana, Appellant, v. Melville NELSON, Appellee.
• Court: Indiana Supreme Court

Page 703

199 N.E.2d 703

245 Ind. 430

CITY OF EVANSVILLE, Indiana, Appellant, v. Melville NELSON, Appellee.

No. 30616.

Supreme Court of Indiana.

June 25, 1964.

Jerome L. Salm, Robert S. Mattews, David M. Keck, Evansville, for appellant.

Weyerbacker, Lacey & Rideout, Boonville, and Howard C. Sandusky, Evansville, for appellee.

ACHOR, Chief Justice.

This case comes to us on petition to transfer from the Appellate Court under Rule 2-23 of this court. See: City of Evansville v. Nelson (1964), 194 N.E.2d 817 for opinion of the Appellate Court.

This cause of action follows a proceeding before the Civil Service Commission for the Police Department of the City of Evansville, wherein the appellee, a police officer, was discharged after a hearing before that body. The decision was 'appealed' and venued to the Warrick Circuit Court which heard the cause de novo, set the decision aside, and ordered appellee reinstated. This appeal followed.

Numerous reasons were entered upon the records of the Commission as constituting grounds for dismissal. The reasons herein asserted as having been established before the Commission against appellee in support of his action are as follows, in part:

'1. * * * [T]hat on or about the 9th day of April, 1961 at about 4:00 P.M., Patrolman Melville Nelson did then and there violate Paragraph numbered 4 of the Departmental Rules and Regulations of the Civil Service Commission for the Police Department in that he did * * * at the said time, and while on duty as a policeman and while wearing the uniform of a policeman, * * * then and there partake of intoxicating liquors to such an extent as to result in a condition of intoxication so that he was then and there unable to carry out his duties as a police officer.

'2. * * * [O]n or about the 9th day of April, 1961, at about 4:00 p. m., Patrolman Melville Nelson did then and there violate Paragraph numbered 22 of the Departmental Rules and Regulations of the Civil Service Commission for the Police Department in that he did so conduct himself in the discharge of his duties and in his relations with the public and other members of the Department in a manner which did not promote the most efficient operation of the Department, and in such a manner as to being adverse criticism and disrepute to the Police Department and to the City of Evansville in this: that while a member of said Department and on active duty, he did then and there drink and partake of intoxicating liquor so as to render himself unfit for duty * * *

* * *

* * *

'4. * * * [T]hat on or about the 9th day of April, 1961, at about 4:00 P.M., Patrolman Melville Nelson did then and there violate Paragraph numbered 27 of the Departmental Rules and Regulations of the Civil Service Commission for the Police Department in that at such time and place, and while on duty as a police officer, he failed to obey specific orders and instructions and failed to take proper police action reasonably expected in a particular situation in that when instructed by a superior officer to respond to a police call, he did not do so, despite the fact that he had advised his superior officer that he would so respond.'

Paragraph numbered 4, 22 and 27 of the Rules and Regulations of the Civil Service Commission for the Police Department, alleged to have been violated in the above charges, are as follows:

'4. STANDARD OF CONDUCT

'Every member of the Department is required to obey strictly and execute promptly all orders of his superiors, and to conduct himself in the discharge of his duties and in his relations with the public and other members of the Department in a manner which will promote the most efficient operation of the Department. The conduct of members in their personal life and while off duty shall be such that it will not bring adverse criticism or disrepute to the Police Department of the City of Evansville.'

'22. INTOXICATING LIQUORS

'Members of the Department shall not drink intoxicating liquor of any kind while on active duty, nor while off duty to an extent unfitting him for duty. The odor of liquor on the breath of a member when reporting for duty, or while on active duty, shall be deemed sufficient evidence that he is unfit for duty, and in violation of this rule. * * *' [Our emphasis.]

'27. NEGLECT OF DUTY--NEGLIGENCE

'Failure to obey specific orders, regulations, or instructions, or to take proper police action reasonably expected in a particular situation, may be deemed neglect of duty or negligence, depending on the circumstances.'

After a hearing de novo on appellee's 'appeal' to the trial court, said court entered its finding, as follows, in part:

'And now the Court finds as a matter of law that the charges herein of which the plaintiff was found guilty as set forth in the transcript and on the records of the Civil Service Commission for the Police Department of the City of Evansville, Indiana, were not specific as to place and nature of the offense of offenses charged and that such proceedings were illegal and void ab initio and necessarily contrary to law.

* * *

* * *

'The Court further finds that the proceedings held by the Civil Service Commission for the Police Department of Evansville discharging Melville Nelson as a member of the Police Department of the said City should be set aside and reversed, * * *'

Very obviously, and reasonably so, the trial court in reaching its decision, and the appellee in this appeal, relied upon the following statement in City of Ft. Wayne v. Bishop (1952), 228 Ind. 304, pp. 310, 312, 315, 92 N.E.2d 544, 546, which also involved proceedings for discharge of a police officer. In that case this court in a general discussion of the issue stated:

'* * * The charge made must be specific as to time, place, and the nature of the offense or offenses charged. * * *' [Our emphasis.]

However, an examination of the case and of the law, relating thereto, discloses (1) that the statement as to the specific 'time,' and 'place,' of the offense was mere dicta, unnecessary to the decision of the case, and (2) that in these respects the statement is not supported by the law relevant to such proceedings. The absence of such allegations in a charge do not make it fatally defective unless they (time and place) are essential elements of the particular offense charged.

The following excerpts from the Ft. Wayne case, supra, clearly demonstrate that the case was not decided on the ground that the charge was not specific as to the time or place of the offense charged, as stated in that case. Rather, it was decided on the ground that:

'* * * [T]he causes for which a member of the police force may be dismissed or otherwise disciplined are specifically provided for in the third sentence of the statute [§ 48-6105, Burns' 1963 Repl. (Acts 1935, ch. 282, § 1, p. 1395]), as follows: (1) conviction of a criminal offense, (2) neglect of duty, (3) violation of rules, (4) neglect or disobedience of orders, (5) incapacity, (6) absence without leave, (7) immoral conduct, (8) conduct injurious to the public peace or welfare, (9) conduct unbecoming an officer, (10) or other breach of duty. * * * [228 Ind. p. 310, 92 N.E.2d p. 564.]

* * *

* * *

'* * * Appellee could be tried before the Board of Public Safety only upon 'the written reasons * * * entered upon the records of such board.' State ex rel. Felthoff v. Richards [203 Ind. 637, 180 N.E. 596], supra, 203 Ind. at page 644, 180 N.E. at page 598. * * * An examination of the charges so entered in writing against appellee upon the records of such board fails to disclose anything said or done or omitted to be said or done by appellee that would justify either dismissal or discipline under the statute.' [Cases cited.] [228 Ind. p. 312, 92 N.E.2d p. 547.]

'* * * In the instant case not one of the statutory reasons for discipline or dismissal was entered in writing upon the records of the board. * * *' [228 Ind. p. 310, 92 N.E.2d p. 546.] [Our emphasis.]

Therefore, this court, in the above case, concluded that since 'no lawful charges were filed against appellee, * * * no legal hearing was ever had before the Board of Public Safety of appellant, and that its action dismissing appellee from the police force was wholly arbitrary and capricious.' [228 Ind. p. 315, 92 N.E.2d p. 548.] [Our emphasis.]

Furthermore, it is to be noted that there is nothing in § 48-6105, Burns' 1963 Repl., supra, which requires that 'The charge must be specific as to time, place, * * *' stated in the Ft. Wayne case, supra [p. 310, 92 N.E.2d 544], and that the statement is not supported by citation of any authority. Instead, the only provision of the statute relative to 'time,' and 'place,' appears in relation to the notice required to be given of such proceedings. It is provided that prior to such disciplinary proceedings the accused officer must first be notified 'of the time and place of hearing.' [§ 48-6105, supra.] [Our emphasis.] With regard to the form and substance of the charge itself, the statute, supra, merely provides that 'written reasons for such removal shall be entered upon the records of such board.' [Our emphasis.]

A verbatim statement of the first part of § 48-6105, supra, is as follows:

'Every member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board. They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board * * *' [Our emphasis.]

The proceedings as held by the Commission are governed by the general ...